Vulnerabilities of and Protections Needed for Temporary Workers

Transcription

1 Vulnerabilities of and Protections Needed for Temporary Workers Farm Workers in Mexico and the United States November 15, 2017 GAO H-2A and H-2B Visa Programs Page 1

2 Overview Introduction Background Findings Conclusions Recommendations Page 2

3 Introduction Violence Against Women Reauthorization Act of 2013 mandated review of the use of foreign labor in the U.S. and overseas Focused on H-2A and H-2B workers Research questions addressed: Number of H-2A and H-2B workers and their occupations How U.S. employers recruit these workers and what abuses, if any, are there in their recruitment and employment processes How well does the federal government protect these workers Page 3

4 Background: Key Features of the H-2 Programs H-2A For agricultural workers No annual cap on the number of H-2A visas Employer pays for workers transportation Employer provides free housing and three meals a day or access to cooking facilities H-2B For non-agricultural workers Annual cap of 66,000 workers per year Employer pays for transportation (changed in new regulations) Worker pays for housing Worker pays for meals Page 4

5 Background: Scope and Methodology Analyzed data from multiple federal departments (Homeland Security, Justice, and Labor) from FY 2009 through FY 2013 Interviewed federal agency officials, worker advocates, state workforce officials, employers, and employer associations Held discussion groups with workers from Mexico (in Mexico) and Jamaica (in U.S.) Reviewed NGO reports Page 5

6 Background: Screening and approval process Page 6

7 Background: Recruitment Fees For both programs, DOL and DHS regulations prohibit payment of fees from a prospective worker for any activity related to obtaining labor certification or as an offer of employment, including payment of employer agent or recruitment fees DOL regulations require that employers attest that they have contractually forbidden foreign labor contractors or recruiters from receiving payments from workers Page 7

8 Number of Visas Issued Increased from 2009 through 2013 Fiscal Year H-2A H-2B ,112 44, ,921 47, ,384 50, ,345 50, ,192 57,600 Source: GAO analysis of Department of State Nonimmigrant Visa System summary data GAO Page 8

9 Demographics of H-2A and H-2B Workers and Entry Patterns Most were: From Mexico Predominantly men For H-2A, 96 percent were men For H-2B, about percent were men Aged 40 or younger Entered the country multiple times: About 50 percent of H-2A workers About 43 percent of H-2B workers About 4 percent entered at least once under each visa type Page 9

10 Top Five U.S. Embassies and Consulates Issuing H-2A and H-2B Visas ( ) 94% Mexico 1% 0 Guatemala 0 5% Jamaica y- 0 Nicaragua <1% 2%.--- Philippines 0 Size of circle indicates average percentage C of visas issued from FY2009 to FY2013 H-2A visas H-2B visas... 2% 0 South Source : GAO review of Department of State Nonimmigrant Visa System summar y data ; National Atlas (base map). I GA Page 10

11 H-2B Workers Filled More Varied Occupations and Industries Than H-2A Workers Percentage of occupations requested by employers on new H-2A and H-2B petitions, FYs Page 11

12 Employers Used Varying Methods to Recruit Workers Employers used both direct and indirect recruitment methods: Direct Employer recruits Indirect Informal Returning worker recruits others Formal Contractor or contractor-subcontractor recruits Page 12

13 Types of Abuses Some Workers Experienced during Recruitment Abuse Description Mentioned by At least one of the three worker discussion groups held by GAO Federal and NGO officials NGO surveys Recruitment Fees Visa Fraud Recruitment Fraud Inadequate Job Information Source: GAO analysis of reports by Centro del los Derechos del Migrante Inc., and Journaleros SAFE; interviews with nongovernmental organizations and federal officials; and discussion groups with H-2A and H-2B workers. GAO Page 13

14 Aggregated Categories of Violations That Occurred during Recruitment and Employment Category of Violation Violations related to pay or pay statement Number of H-2A employers 766 Number of H-2B employers 27 Violations related to paycheck deductions (H- 2A) or failure to pay for required employerprovided items Violations related to recruitment of foreign workers Violations related to failure to abide by other employment laws Violations related to safety of employerprovided housing and transportation 393 N/A Source: GAO s analysis and categorization of DOL s Wage and Hour (WHISARD) data, fiscal year GAO Page 14

15 Complaints about Abuse of H-2A and H-2B Workers National Human Trafficking Resource Center (NHTRC): Received over 1,400 complaints of abuse Nearly twice as many were H-2B than H-2A More than 1/3 were related to pay and hours A quarter were related to contract violations 130 included possible human trafficking and 35 included key indicators, such as force, fraud, or coercion Industries with largest number of alleged cases were agriculture, landscaping, and carnivals Page 15

16 Reasons Violations May Be Underreported Workers may have disincentives to report abuses for several reasons: Structure of the H-2A and H-2B programs: single employer on visa; Can create fear of being excluded from future work for speaking up about abuse (blacklisted) admitting to having paid recruitment fees and having visa denied retaliation from recruiters against themselves or their families Page 16

17 Multiple Federal Agencies Share Responsibility to Prevent Exploitation of Workers and Provide Assistance to Victims Page 17

18 Federal Agencies Screen Employers DOL screens employer applications to ensure program eligibility DHS screen employer petitions However: DOL does not use all available information to screen applications for employers who are ineligible to participate in the program DOL does not share all information on ineligible employers with DHS and State Page 18

19 Federal Agencies Provide Information to Workers Before Entering U.S. Department of State Conducts briefings of workers after they are approved for a visa Provides Know Your Rights brochures Conducts information campaigns DOL Participates in Consular Partnership Program Page 19

20 Federal Agencies Provide Services and Immigration Relief Legal Services Corporation Full legal aid services available to all H-2A, H-2B workers working only in forestry, and all victims of human trafficking Health and Human Services Authorizes victims of human trafficking to access federallyfunded benefits and services Department of Justice Provide funding to grantees which provide victim services Immigration relief through T- and U-visas Page 20

21 Most DOL Enforcement Efforts Targeted to H-2A DOL investigated more H-2A employers than H-2B employers H-2A H-2B Percentage of visas issued Percentage of total H investigations DOL reasons for discrepancy: Wage and Hour (WHD) has had the authority to investigate H-2A employers for a longer time (since 1987 v for H-2B) WHD conducted an H-2A evaluation in H-2A workers are more likely to receive employer-provided housing, making them easier to reach H-2B workers are spread across more industries Page 21

22 Ability to Bar Ineligible Employers May Be Limited by 2-Year Statute of Limitations DOL may bar employers who have committed certain violations for up to 3 years Two years may elapse before the case has been investigated or gone through the court system Our analysis found the median length of investigations in FYs was 24 months Page 22

23 Conclusions Collected information is not shared across agencies or always used by agencies to improve program effectiveness DHS does not provide standard information on occupations DHS does not make job information available to workers or advocates DOL does not use all of the information it collects to screen employers nor share the information with DHS and State Unclear whether enforcement resources targeted appropriately DOL s enforcement is strategy is more focused on H-2A than H-2B DOL does not collect data on effect of statute of limitations Page 23

24 Recommendations Collected information is not shared across agencies or always used by agencies to improve program effectiveness DHS should use an standard occupation classification system DHS should make job information from approved petitions available to workers and worker advocates DOL should use all available employer-related information to screen new applications for debarred employers DHS and DOL should share data (implemented January 2017) Enforcement can be improved DOL should review enforcement efforts and conduct a national evaluation of H-2B employers DOL should collect data on whether 2-year statute of limitations restricts use of debarment Page 24

25 Thank You GAO on the Web Connect with GAO on LinkedIn, Facebook, Flickr, Twitter, YouTube and our Web site: Subscribe to our RSS Feeds or Updates. Listen to our Podcasts and read The Watchblog Congressional Relations Katherine Siggerud, Managing Director, (202) , U.S. Government Accountability Office 441 G Street, NW, Room 7125, Washington, DC Public Affairs Chuck Young, Managing Director, youngc1@gao.gov (202) , U.S. Government Accountability Office 441 G Street, NW, Room 7149, Washington, DC Strategic Planning and External Liaison James-Christian Blockwood, Managing Director, spel@gao.gov (202) , U.S. Government Accountability Office, 441 G Street NW, Room 7814, Washington, DC Copyright This is a work of the U.S. government and is not subject to copyright protection in the United States. The published product may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.